california attorney what to do if potential client left file

What is the proper handling of client files?

The proper handling of client files is an important issue that a departing partner must consider when leaving an existing firm. This often involves a careful examination and balancing of the partner’s own interests, the client’s interests, and the interests and rights of the law firm from both an ethical and legal standpoint.

Is a client's file a client's property?

A substantial body of case law and ethics opinions addressing the handling of client files has developed over the years surrounding the concept that a client’s file is a client’s property. ( Rose v. State Bar (1989) 49 Cal.3d 646.) This notion is based on the underlying idea that clients may discharge an attorney at any time, with or without cause, in the interest of obtaining the successful prosecution or defense of a claim. ( Fracasse v. Brent (1972) 6 Cal.3d 784 .) Since effective client representation generally requires access to a client’s file, if a client chooses to follow a departing partner, the client’s entire file should be transferred from the law firm to the departing partner immediately. ( Rose v. State Bar (1989) 49 Cal.3d 646; California Rules of Professional Conduct, Rule 3-700 (D) .)

What happens after a lawyer terminates a client relationship?

[1] After termination of a lawyer-client relationship, the lawyer owes two duties to a former client. The lawyer may not (i) do anything that will injuriously affect the former client in any matter in which the lawyer represented the former client, or (ii) at any time use against the former client knowledge or information acquired by virtue of the previous relationship. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811 [124 Cal.Rptr.3d 256]; Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564 [15 P.2d 505].) For example, (i) a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client and (ii) a lawyer who has prosecuted an accused person* could not represent the accused in a subsequent civil action against the government concerning the same matter. (See also Bus. & Prof. Code, § 6131; 18 U.S.C. § 207(a).) These duties exist to preserve a client’s trust in the lawyer and to encourage the client’s candor in communications with the lawyer.

What is the requirement that the sale of all or substantially of the law practice of a lawyer?

[1] The requirement that the sale be of “all or substantially* all of the law practice of a lawyer” prohibits the sale of only a field or area of practice or the seller’s practice in a geographical area or in a particular jurisdiction. The prohibition against the sale of less than all or substantially* all of a practice protects those clients whose matters are less lucrative and who might find it difficult to secure other counsel if a sale could be limited to substantial* fee-generating matters. The purchasers are required to undertake all client matters sold in the transaction, subject to client consent. This requirement is satisfied, however, even if a purchaser is unable to undertake a particular client matter because of a conflict of interest.

What is a prospective client?

A person* who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from the lawyer in the lawyer’s professional capacity, is a prospective client.

What is the rule of a lawyer?

Subject to rule 1.2.1, a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by rule 1.4, shall reasonably* consult with the client as to the means by which they are to be pursued. Subject to Business and Professions Code section 6068, subdivision (e)(1) and rule 1.6, a lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. Except as otherwise provided by law in a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

Can a lawyer buy property?

A lawyer shall not directly or indirectly purchase property at a probate, foreclosure, receiver’s, trustee’s, or judicial sale in an action or proceeding in which such lawyer or any lawyer affiliated by reason of personal, business, or professional relationship with that lawyer or with that lawyer’s law firm* is acting as a lawyer for a party or as executor, receiver, trustee, administrator, guardian, or conservator.

Can a lawyer accept a gift from a client?

[1] A lawyer or a person* related to a lawyer may accept a gift from the lawyer’s client, subject to general standards of fairness and absence of undue influence. A lawyer also does not violate this rule merely by engaging in conduct that might result in a client making a gift, such as by sending the client a wedding announcement. Discipline is appropriate where impermissible influence occurs. (See Magee v. State Bar (1962) 58 Cal.2d 423 [24 Cal.Rptr. 839].)

Can a lawyer use client information?

lawyer shall not use a client’s information protected by Business and Professions Code section 6068, subdivision (e)(1) to the disadvantage of the client unless the client gives informed consent,* except as permitted by these rules or the State Bar Act.

What is client papers and property in California?

California Rule of Professional Conduct 3-700 (D) (1) defines “client papers and property” to include “correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client’s representation, ...

What is the California Rule of Professional Conduct?

California Rule of Professional Conduct 3-700 (A) (2) and (D), as well as ABA Model Rule 1.16 (d), require that attorneys take reasonable steps to avoid prejudice to their clients’ rights when a representation ends, including giving the client due notice of termination, allowing time for a client to get other counsel, and promptly returning unearned advance fees and other papers and property of the client that the client has requested be returned.

What is the ABA Formal Opinion 471?

Under the ABA Model Rules, ABA Formal Opinion 471 concludes that, in the scenario of the long representation of the municipality, “it is unlikely that within the meaning of Rule 1.16 (d), the client is entitled to papers or other property in the lawyer’s possession that the lawyer generated for internal use primarily for the lawyer’s own purpose in working on the municipality’s matters. This is particularly true for matters that are concluded.”

Why is it necessary for an attorney to provide drafts of work product and notes?

However, given that the lawyer’s representation of the municipality was terminated before some matters were completed, ABA Formal Opinion 471 states that it may be necessary for the attorney to provide to the client certain drafts of work product and notes in order to avoid harming the client’s interest. For example, if a filing deadline is imminent, the attorney should provide the client with the most recent draft and relevant supporting research required to meet the deadline.

Do attorneys have to return papers?

Attorneys have an ethical obligation to promptly return a former client’s papers and property upon a client’s request when representation ends. After a brief representation, that duty may sound simple enough.

What About If There Is No Attorney Client Relationship?

There are times when someone believes that you agreed to represent them. Maybe you answered a question in a legal forum. Maybe they came in for a consultation and you decided not to take their case. Something happened that led the person to believe that they are, indeed, your client.

Did You Receive an Ethics Complaint?

If you received an ethics complaint because of an issue related to the attorney client relationship or for any other reason, download our free guide on how to handle a bar complaint. Then, consider scheduling a consultation with Megan to discuss the best defense strategies for the allegations made against you.

What is the California law on attorney lien?

While an attorney’s lien may be used to secure either an hourly fee agreement or a contingency fee agreement, hourly fee agreements purporting to create an attorney’s lien must comply with Rule 1.8.1 of the California Rules of Professional Conduct. Rule 1.8.1 requires that:

What is the duty of an attorney to bring a separate action against a client?

An attorney must bring a separate action against the client to: (1) establish the existence of the lien, (2) determine the amount of the lien, and (3) enforce it.

What is attorney-client relationship?

The common attorney-client relationship in its simplest form is: the potential client signs a fee agreement retaining the attorney, the attorney performs the requested work, the client achieves an end result, and the attorney gets paid. The unfortunate reality, however, is that sometimes a retained client fail to pay its attorney for some (or all) of the legal work that the attorney performed. When this occurs, the attorney is left in a difficult divide between complying with the attorney’s ethical obligations and enforcing the attorney’s right to be paid. So how can the attorney ethically enforce its right to be paid while still complying with the Professional Rules all attorneys are bound by? Is it even possible? The answer is in one small word “liens.”

What is a lien on an attorney?

An attorney’s lien (also termed a “charging lien”) is a lien that secures an attorney’s compensation “upon the fund or judgment” recovered by the attorney for the client.

When is an attorney's lien created?

An attorney’s lien is created and takes effect at the time the fee agreement is executed , and may be created without even using the word “lien” at all. The determinative question is “whether the parties have contracted that the lawyer is to look to the judgment he may obtain as security for his fee.” Although a notice of lien is not necessary to “perfect” an attorney’s lien, filing a notice of attorney’s lien “has become commonplace, and the courts have endorsed the practice.”

Do retained clients pay their attorney?

The unfortunate reality, however, is that sometimes a retained client fail to pay its attorney for some (or all) of the legal work that the attorney performed. When this occurs, the attorney is left in a difficult divide between complying with the attorney’s ethical obligations and enforcing the attorney’s right to be paid.

Can an attorney's lien be created in California?

Unlike most jurisdictions, where an attorney’s lien is established by operation of law in favor of an attorney to satisfy attorney fees and expenses out of the proceeds of a prospective judgment, in California, an attorney’s lien can only be created by contract.

What is a litigation hold letter?

2003). A litigation hold letter, often referred to as a “litigation hold”, is an email or letter sent to employees, third parties, or vendors under a respondent’s control, notifying the recipient of pending or current litigation and the obligation not to delete potentially relevant evidence and instructing the recipient of their preservation obligations. A litigation hold should notify the recipient of the matter’s name and the recipient’s obligations to preserve, safeguard, and retain potentially relevant evidence. An attorney will tailor a litigation hold to include specific examples of where a recipient might find potentially relevant evidence. Given that not all custodians will have experience with lawsuits, attorneys should include the contact information of the person overseeing the litigation hold in case recipients have questions. Lastly, to ensure compliance, a litigation hold should be returned by the recipient signed, and receipt and compliance acknowledged so there is a record of the action.

When identifying custodians, should attorneys work inside out?

When identifying custodians, attorneys should work inside out by first identifying which of the client’s relevant employees who may have potentially relevant evidence first, moving onto third parties or outside vendors under the client’s control but not employed by the client.

How to prepare for custodian interviews?

To prepare for custodian interviews, attorneys should inquire whether the client has a retention policy. A retention policy is a document that governs how the business and employees are to retain business information. If a client has a retention policy, this policy should serve as a baseline understanding of how a business’s retention is intended to work. However, merely reviewing a client’s retention policy, if one exists, should be avoided. A review of a client’s retention policy with custodian interviews is necessary because employee practices often differ from policy. Therefore, attorneys should use a retention policy to understand a client’s retention intent and custodian interviews to know how a client’s retention works in practice, to ensure the preservation of potentially relevant evidence.

How to determine if there is client control?

To determine whether there is client-control, an attorney should determine whether the client makes decisions regarding the client’s information and data. If a client has the final say over how information is handled or when it may be destroyed, one should assume that data is under client-control.

What is the California Civil Discovery Act?

In California, the law slightly differs from its federal cousin. The California Civil Discovery Act of 1986 (“CDA”) govern s civil discovery within the Golden State. While the CDA is where one would expect the prohibition of the intentional destruction of evidence, surprisingly, the CDA does not explicitly bar the deliberate destruction of relevant evidence before a lawsuit has been filed or before a discovery request. See, e.g., Dodge, Warren & Peters Ins. Services, Inc. v. Riley, 105 Cal. App. 4 th 1414, 1419 (2003).

Does California have a preservation law?

While California has its own law that governs the preservation of potentially relevant evidence, to comprehend preservation duties under California law, attorneys should first look to the federal rule. Federal law requires the early preservation of potentially relevant evidence.

When switching attorneys, do you want to have access to documents?

Particularly if you're switching attorneys in the middle of a dispute, court case, or other ongoing legal matter, you want your new attorney to have access to these important documents.

How to request a copy of a legal document?

You can ask your lawyer to send the files directly to you or your new attorney, in which case the safest way to make the request is in writing, via letter or email. Alternatively, you can pick up a copy of your file in person (but contact the office first, so that it has time to locate and review the contents of your file and make a copy for you).

How to be respectful of an attorney?

Be respectful of the attorney and professional in your communications; emphasize that the disagreement and decision are not personal.

Can a client have an absolute work product?

Some states, such as California, have ruled that the client is not entitled to "absolute work product." These would include documents that reflect the attorney's impressions, opinions, and legal theories, as well as legal research.

Do you have to hand over documents to an attorney?

Upon request, an attorney is required to promptly hand over the contents of your case files. Under the American Bar Association's Model Rule 1.16 (d) (which has been adopted by most U.S. states), an attorney must, to comply with ethical and professional standards, " [surrender] papers and property to which the client is entitled and [refund] any advance payment of fee or expense that has not been earned or incurred" as soon as the representation is terminated.

Do you have to charge a fee for copying documents?

Your new attorney will want to communicate with that body and make sure it sends any new correspondence, such as motions from the opposing party, directly to the new attorney.) Your attorney should not charge you a fee for copying the documents in your file.

Do old lawyers deserve more money?

You may feel that your old lawyer doesn't deserve any more money. But you need to weigh these costs against the harm that could be done to your legal interests if your old lawyer acts in bad faith and holds documents hostage. It might be better to pay your bill in order to facilitate a clean break of the relationship.